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  • Joseph Curcio

What Is The “Best Interest Of The Child” Standard That Courts Apply in Custody And Visitation Cases?

Updated: May 4, 2022

In Virginia, any court determining the custody or visitation rights of a parent, grandparent, or other party of interest over a child must ensure that the provisions of its order serve “the best interests of the child.”

But how does a court make this determination? In this post, I will be focusing on VA Code § 20-124.3, which lays out a number of factors a court must consider in establishing or amending child custody or visitation.

“The Best Interest Of The Child” Factors

Under VA Code § 20-124.3, a court shall consider the following in determining the best interests of a child:

“1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;

9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.”

While courts must consider the above factors in determining the best interests of a child in matters relating to custody and visitation, it can still be quite difficult to predict how a court might apply these factors to the facts of any given case. First, not every factor is going to be relevant to every case. Second, a court may place more emphasis on one factor over another. Third, some factors may favor one party’s argument, whereas other factors may favor another party’s argument. And fourth, the statute allows a court to consider additional factors not specifically dictated by the statute’s text.

Other Considerations

Additional considerations may have bearing on a court’s outcome in cases where the best interests of a child are considered.

Perhaps most significantly, A court may choose to appoint a Guardian Ad Litem (GAL) for the child. A GAL is an attorney that advocates specifically for a child’s best interests. The GAL often helps a court to pinpoint the most important factors at issue and can provide guidance as to how a court should consider ruling on such matters.

Depending on a party’s relation to the child, a court may also have other factors it must consider in addition to the best interests of the child. For example, any grandparent seeking custody or visitation of their grandchild will likely have to overcome additional legal tests before a court is even allowed to consider whether placing the child with that grandparent would be in the child’s best interests.

Consult An Attorney

Regardless of your circumstances, it can be worthwhile to consult with an experienced family law attorney to explore your legal options.

Please be mindful that every case has different facts and can implicate different areas of the law. As such, the subject matter contained within this article should not be interpreted as specific legal advice for any individual case. Please contact Curcio & Curcio, PC at 276-466-3377 if you are need of any of the following:

  • An attorney in Bristol, VA

  • An attorney in Abingdon, VA or the broader Washington County area

  • An attorney in Marion, VA or the broader Smyth County area

  • An attorney in the broader Southwest Virginia area.

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